Bayside Seafood Rest. - Amendment (12!5!97)

8/3/2019 Bayside Seafood Rest. - Amendment (12!5!97)

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Amendment to Revocable PermitTHIS AMENDMENT made thisL day of e...... 1997, to aRevocable P e rmit d ate d December 21, 1994 (the "Permit"), by an d betwee th e Cityof Miami (the "City") an d Bayside Seafood Restaurant, Inc. (the "Permittee" .

WitnessethWHREItS, by Revocable Permit ("Permit") dated December 21, 1994, th eCity permitted Permittee to operate a restaurant concession consisting ofapproximately 4,000 s.f: of outdoor deck dining a re a a nd approximately 2,000 s.f. ofenclosed kitchen an d dining area at approximately 3501 Rickenbacker Causeway,Miami, Florida;WHREItS. City an d Permittee desire to amend the Perm it and to formallyreflect their understandings and agreements with respect thereto;NOW'. THRFoaE, the parties hereto do hereby covenant an d agree asfollows:

1. Paragraph 4 of th e Permit is hereby amended as follows:Effective February 1, 1997, th e monthly Fee for use of th e Area

shall be a minimum of two thousand five hundred dollars ($2,500)plus eight percent (8%) of Gross Proceeds greater than $500,000 pe ry e ar p rora te d on a monthly basis. Within fifteen (15) days after theend of each calendar month: (i) Permittee shall pa y to City themonthly Fe e of $2,500); (ii) Permittee shall deliver to City a writtenreport of Gross Proceeds during th e preceding calendar month, onforms approved by City. This r ep or t s ha ll be signed by Permitteecertifying to th e accuracy of such Gross Proceeds, an d (iii) Permitteeshall pa y to City the percentage fee due, i f any, for th e precedingc al en da r m on th based upon th e Gross Proceeds for th e precedingcalendar month. At th e en d of each Permit year, i f Permittee ca ndemonstrate that it ha s made an overpayment in percentage fees due,Permittee shall be entitled to receive a credit against the nextpayment of minimum monthly fees due. In no e ve nt s ha ll P er mi tt eebe entitled to receive a n y in te rest on any overpayment.

2. A new paragraph 30 is hereby added as follows:Credits. Adjustments an d Agreementsa) Existing Debt. Permittee hereby acknowledges thatPermittee failed to pa y the monthly fees due to the City under theterms of the Permit for the period of November, 1995 throughJanuary, 1997. Accordingly, Permittee acknowledges that Permittee


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owes the City unpaid fees in the amount of forty thousand, sixhundred and eighty-six dollars and 72/100 ($40,686.72) plus State usetax in the amount of four thousand, five hundred and sixteen dollarsand 08/100 ($4,516.08) for a total amount due of forty-five thousand,two hundred and two dollars and 80/100 ($45,202.80).b) Credits to Permittee. Permittee shall receive a one timecredit in the amount of twelve thousand, nine hundred and twentydollars and 32/100 ($12,920.32) to be applied against the monies dueto the City leaving a balance due to the City of thirty-two thousand,two hundred and eighty-two dollars and 48/100 ($32,282.48) (the"Existing Debt").Effective February I, 1997, the City shall issue to Permittee amonthly credit of seven hundred and eighty-five dollars ($785) for theprovision of janitorial services to the public restrooms. This creditshall applied to reduce the amount ofthe "Existing Debt".c) Payment Agreement. Permittee agrees to pay to the Citythe Existing Debt on the date and in the manner following:Four thousand dollars ($4,000) to be paid by Permittee on or beforeMay 30, 1997, and one thousand dollars ($1,000) per monthcommencing June I, 1997 and an equal payment of one thousanddollars ($1,000) on the f ir st day of each month thereafter until allamounts due are paid in full.City hereby acknowledges receipt of four thousand dollars ($4,000) onMay 27, 1997 representing the monthly payment for the Exist ingDebt for the period of February through May, 1997. City furtheracknowledges receipt of the following one thousand dollar paymentsas payment towards the Existing Debt: (a) Payment for June, 1997was received on June 4, 1997; (b) Payment for July, 1997 was receivedon July 7, 1997; (c) payment for August, 1997 was received on August18, 1997; and (d) payment for September, 1997 was received onSeptember 15, 1997.Any payment not received by the 15th day of any given month shall beassessed a 5% late charge fee of the amount due.d) Permittee's Water Consumption. Permittee herebyagrees to procure a new water consumption survey to be performed byan engineer approved by the City. The City shall share in the cost ofthe survey by permitting Permittee to reduce the existing debt by 50%of the actual survey cost. The findings of said survey shall be bindingupon the parties. The City shall adjust amounts due for water serviceretroactive to December, 1994, based on the usage findings of the newconsumption survey. The adjusted usage amount shall remain


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payable monthly to the City by Permittee, on the first day of eachmonth.3. A new paragraph 31 is hereby added as follows:

Condition PrecedentThe parties acknowledge that this Amendment is contingent uponreceipt by the City of a personal guarantee from Rolf Gerstner ,individual, guaranteeing the payment of the Existing Debt inaccordance with the terms and conditions of the guarantee attachedhereto as Exhibit 1.In lieu of a personal guarantee, the City will accept a check payable to the"City of Miami" in the amount of eighteen thousand and two dollars and48/100 ($18,002.48) ("Guarantee Check"), representing the outstandingbalance of the Existing Debt as of September 25, 1997. Said check shall beheld by the City and shall not be deposited unless and unt il Permitteeviolates the terms and conditions of the Permit, as amended. In the eventthe Existing Debt is not extinguished within six months of the date the checkis written, Permittee shall provide a new check in the amount of the ExistingDebt then outstanding which check shall also be held and not deposited asprovided above unless and until Permittee violates the terms and conditionsof the Permit, as amended. Notwithstanding the above, Permittee may fromtime to time provide to City a new check to be held in escrow as referencedabove to reflect the amount of the Existing Debt then outstanding at thetime the new check is provided.In the event of a default by Permittee under the terms of the Permit, theGuarantee Check shall be held by the City as a guarantee that the onethousand dollar ($1,000) monthly payments continue under the terms herein.If said payments are not made as provided, then the Guarantee Check willbe deposited and the City will refund the difference, i f any, between theGuarantee Check and the then outstanding Existing Debt.

4. The Permit entered into between City and Permittee dated December 21,1994 shall remain in full force and effect and shal l not be deemed to be modifiedexcept as modified hereinabove.


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C i t , ~IN WITNESS WHEREOF, the parties hereto have, through their propertycorporate officials, executed this Amendment to the Permit on the day and year firstabove written.

Edward Marqu zCityManager

Approved as to Form and Correctness:

LRolf Ge tner, PresidentBayside eafood Restaurant, Inc.

STATE OF FLORIDA ))COUNTY OF DADE )() Thf-. foregoing instrument was a c k n o w l e ~ d befpre me this t:rt.b day of

Cam' ' ICC 492IlO7

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Bayside Seafood Rest. - Amendment (12!5!97)